Are damages for emotional distress available under the Rehabilitation Act and the Affordable Care Act?
This case asks the Supreme Court to consider whether compensatory damages are available for emotional distress in victims of discrimination cases. Jane Cummings (“Cummings”) is deaf and legally blind, and she requested an ASL interpreter for physical therapy sessions. Premier Rehab Keller, P.L.L.C. (“Premier”) denied Cummings’ request for an ASL interpreter. Petitioner Cummings argues that under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, compensatory damages are available for emotional distress. Respondent Premier counters that emotional distress damages are not appropriate remedies under the Rehabilitation Act and Affordable Care Act. The outcome of this case has important implications for victims of discrimination as well as for federal funding recipients.
Questions as Framed for the Court by the Parties
Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.
In October 2016, Petitioner Jane Cummings contacted Respondent Premier Rehab Keller, P.L.L.C. (“Premier”) seeking physical therapy services. Cummings v. Premier Rehab Keller, P.L.L.C. at 674. Cummings was born deaf and legally blind, and she primarily communicates through American Sign Language (“ASL”) due to her difficulties speaking, reading, and writing in English. Id. Seeking treatment for her chronic back pain, Cummings requested that Premier provide an ASL interpreter. Id. Premier denied the request and proposed alternative accommodations, such as written communication and Cummings bringing her own ASL interpreter. Id. Finding these proposed alternatives inadequate, Cummings sought physical therapy services elsewhere. Id. Nonetheless, Cummings contacted Premier two more times over the next year seeking treatment. Id. She requested an interpreter each time, and Premier continued to deny her requests. Id. Although Cummings ultimately received physical therapy services elsewhere, she alleged that she was "forced to live with ongoing back pain as a result of her inability to receive quality therapy services” from Premier. Id.
Cummings sued Premier for disability discrimination in the district court for the Northern District of Texas, seeking injunctive relief and damages. Id. She alleged that Premier violated the Americans with Disabilities Act of 1990 (“ADA”), the Rehabilitation Act of 1973 (“RA”), the Patient Protection and Affordable Care Act of 2010 (“ACA”), and the Texas Human Resources Code. Id. at 674–75. Premier moved to dismiss the claims, and the district court dismissed Cummings’ damages claim. Id. at 675. The district court held that emotional distress damages are unavailable under the ACA and the RA. Id. The district court reasoned that emotional distress damages are like punitive damages because they are aimed at punishing defendants’ conduct rather than compensating plaintiffs. Id. Additionally, the district court found that emotional distress damages expose federal funding recipients to unlimited liability and are unforeseeable at the time recipients accept federal funds. Id. Cummings appealed. Id.
The Fifth Circuit Court of Appeals reviewed the district court’s grant of Premier’s motion to dismiss de novo. Id. The Fifth Circuit noted that no controlling Fifth Circuit or Supreme Court precedent existed on the issue of emotional distress damages under the RA and ACA. Id. at 675. The Fifth Circuit affirmed the district court, finding that emotional distress damages are unavailable under the RA and the ACA. Id. at 680. The Fifth Circuit agreed with the district court that Premier was not on notice that it could be held liable for emotional distress damages and reasoned that emotional distress damages are normally unavailable in breach of contract actions. Id. at 677. The Fifth Circuit acknowledged that its decision created a circuit split with the Eleventh Circuit, the only other circuit court that has addressed the availability of emotional distress damages under the RA, which found that emotional distress is a foreseeable consequence incurred when recipients discriminate against third parties. Id. at 679.
The Fifth Circuit denied Cummings’ petition for a rehearing en banc. Petition for a Writ of Certiorari at 10. Cummings filed a petition for a writ of certiorari with the Supreme Court which was granted on July 2, 2021. See id.
DAMAGES FOR INTENTIONAL DISCRIMINATION UNDER THE REHABILITATION AND AFFORDABLE CARE ACTS
Cummings argues that the federal courts have the power under the Rehabilitation Act (“RA”) and the Affordable Care Act (“ACA”) to give compensatory damages as a remedy for intentional discrimination, including emotional distress. Brief for Petitioner, Jane Cummings (“Cummings”) at 15–16. According to Franklin v. Gwinnett Cnty. Pub. Schs. (“Franklin”), Cummings asserts, “federal courts may use any available remedy to make good the wrong done.” Id. at 16. Cummings further asserts that throughout history under the traditional rule of effective relief, federal courts have the authority to “award any appropriate relief in a cognizable cause of action brought pursuant to a federal rule.” Id. at 18. Cummings explains that in Franklin. the Court applied the traditional rule of effective relief to Title IX. Id. at 18–19. Title IX, like the RA and ACA, explicitly incorporates the same remedies available under Title VI of the Civil Rights Act of 1964. Id. In Franklin, Cummings emphasizes that the Court awarded a victim of sexual assault compensatory damages for her suffering because it was the only way for her to receive fair compensation for her injuries. Id. Additionally, Cummings asserts that cases such as Memphis Cmty. Sch. Dist. v. Stachura and Chamberlain v. Chandler demonstrate that emotional distress damages are a customary form of compensatory damages for intentional discrimination. Id. at 19–20. Similarly, Cummings argues that emotional distress damages have been awarded for violations of other anti-discrimination statutes, such as the Fair Housing Act and Title VII. Id. at 22–23. As a result, Cummings explains that emotional distress damages are appropriate under the ACA and RA because intentional discrimination can cause severe mental harms and “deprive [people] of their individual dignity.” Id. at 25. Cummings argues that when someone is prevented from obtaining a service that is open to the public, it is more than an inconvenience; it creates feelings of marginalization. Id. at 26. Cummings emphasizes that emotional distress damages are especially appropriate when discrimination results in emotional harm rather than monetary harm. Id. at 27.
Premier contends that the power of federal courts to give relief under a federal cause of action does not require that emotional distress damages be available as a remedy. See Brief for Respondent, Premier Rehab Keller, P.L.L.C. (“Premier”) at 30. According to Premier, while the Court in Franklin held that compensatory damages were appropriate relief available under the implied right of action in Title IX, the Court did not define the scope of that relief in comparable cases. Id. Premier argues that, although a right to private action to recover compensatory damages may exist under federal law, this does not mean that all remedies, such as emotional distress damages, are available. Id. at 33. Furthermore, according to Premier, Title VII and Title IX are different from the ACA and RA, because they were not enacted under the spending power. Id. at 34. Premier argues that Congress implemented those antidiscrimination statutes that Cummings cites to protect people from the discriminatory actions executed by recipients, but the goal of the statutes enacted under the spending power, like the ACA and RA, is to provide compensation for discrimination victims. Id. Therefore, Premier insists that the fact that Courts have found emotional distress remedies available under other antidiscrimination statutes irrelevant to the availability of remedies under the ACA and RAs. Id. at 34–35.
CONTRACT LAW AND DAMAGES FOR EMOTIONAL DISTRESS
Cummings argues that emotional distress damages are usually available in breaches of anti-discrimination contract provisions. See Brief for Petitioner at 30. Cummings explains that legislation enacted under Congress’s spending power is often similar in nature to a contract. Id. Cummings uses Title VI as an example, explaining that the offer of federal funding is conditional on a promise by the recipient not to discriminate, which in turn creates the essence of a contract between the federal government and the recipient. Id. Cummings asserts that Congress has reinforced and extended Title VI’s private right of action for breach of contract and incorporated it into the RA and the ACA. Id. at 40. Cummings argues that the remedies available under the RA and ACA have the same scope as those available in a private cause of action brought under Title VI. Id. Moreover, Cummings explains that Barnes v. Gorman (“Barnes”) held that, given the “contractual nature” of Title VI and statutes that incorporate Title VI’s remedies, contract law controls the “the scope of damages remedies” when those statutes are violated. Id. at 30. Therefore, Cummings argues that the recipients are on notice that accepting federal funding opens them up to liabilities, given the statutes’ contractual nature. Id. at 30–31.
Furthermore, Cummings asserts that recipients of federal funding are on notice for remedies traditionally available in contract breaches as well as remedies explicitly set forth in legislation. Id. at 31. According to Cummings, under Barnes, traditional contract remedies include recovery for emotional distress if the serious emotional distress is a likely result of breach of contract. Id. Cummings reasons that courts have historically upheld awards of emotional distress damages in common law cases with breaches of promises. Id. at 32. Cummings argues that when Congress required federal fund recipients to promise not to discriminate, Congress was contracting for more than simply monetary benefits. Id. Cummings insists that when enacting Title VI, Congress understood that the contract the legislation created, centered around an issue that is very personal, and, therefore, breach would likely result in emotional distress. Id. Additionally, Cummings asserts that the Fifth Circuit Court of Appeals did not have the authority to ignore the traditional rule regarding emotional disturbance remedies in breach of contract cases. Id. at 33. Cummings argues that when contracts protecting dignitary or personal interest are breached, it is normal to have damages for emotional suffering. Id. at 33–34. Cummings insists that because emotional distress is often the only available remedy, taking away this remedy would leave victims of discrimination with no recovery. Id. at 41.
Premier argues that since emotional distress is not a traditional remedy for breach of contract, recipients of federal funds do not have notice that they could be subject to damages for emotional distress. See Brief for Respondent at 16. Premier argues that Congress is required to give explicit notice of conditions that come with the acceptance of federal funds. Id. Premier notes that recipients are subject to traditional remedies for breach of contract and remedies explicitly provided in the legislation, so long as they are given adequate notice. Id. at 17. Premier, however, argues that in Barnes the Court held that punitive damages are not available to enforce the funding requirements in the RA and the ADA. Id. Since both statutes get their remedies from Title VI, which fails to explicitly mention remedies, and punitive damages are not traditionally a remedy for breach of contract, Premier asserts that contract law does not provide a rationale for awarding such damages under Title VI. Id. Moreover, Premier asserts that damages for emotional distress are not available in contract cases filed in federal court and under federal common law. Id. at 19. As a result, Premier argues that since emotional distress damages are not traditionally applicable to breach of contract and the RA and the ACA do not explicitly give recipients notice of exposure to liability for emotional distress damages, those damages are not available as relief. Id.
Moreover, Premier asserts that Cumming’s argument—that recipients are necessarily on notice if emotional distress is especially likely to occur from a contract breach—fails because it is too vague a standard to give recipients clear notice. Id. at 20–21. Premier argues that, while some courts have awarded damages for emotional distress from some breaches of contract, there is no explicit distinction between tort and contract regarding damages for emotional distress. Id. at 21–22. Although some jurisdictions allow for emotional distress damages for contracts that are personal in nature, Premier explains that other jurisdictions never recognize such damages and others only allow for such damages to be awarded when the defendant acted wantonly or willfully. Id. at 26–27. Premier argues that the lack of uniformity in the awarding of emotional distress damages prevents recipients from receiving adequate notice. Id. at 24. Additionally, Premier reasons that most cases that Cummings relies on to demonstrate historical support for emotional distress damages relied on both tort and contract principles. Id. at 25. Given the reliance on tort law and the narrow circumstances in which emotional distress damages have been applied by courts, Premier contends that recipients are not on notice of liability under the ACA and the RA. Id. at 26.
REMEDIES FOR DISCRIMINATION
Disability Organizations warn that denying emotional distress damages under the RA and ACA would leave some victims of discrimination without legal remedies for their distress. Brief of Amici Curiae Disability Organizations, in Support of Petitioner at 10. The NAACP, et al. additionally point out that “noneconomic injuries” stemming from race or sex discrimination cause serious harm requiring the due payment of emotional distress damages. Brief of Amici Curiae the NAACP, et al., in Support of Petitioner, at 7–8, 15–16. Similarly, Disability Organizations further contends emotional distress damages are often the only remedy available to a victim of discrimination. Brief of Disability Organizations, at 10. Disability Organizations assert that other remedies may be unavailable due to the nature of the individuals’ injuries: for example, once patients with disabilities cease to require the treatments that they initially sought, injunctive relief becomes unavailable. Id. at 11. Additionally, Disability Organizations assert that not all individuals who suffer from emotional distress also suffer physical injuries or significant monetary damages. Id. Consequently, Disability Organizations contend, restitution becomes unavailable when individuals lack more tangible injuries to accompany their emotional distress. Id. Disability Organizations claim that when emotional distress damages are unavailable to victims of discrimination, and those victims lack alternative remedies, the overall dearth of available remedies undermines the deterrence of discrimination. Id. Disability Organizations adds that a holding for Premier would harm individuals with disabilities because it would undermine enforcement and leave many individuals without a remedy. Id. at 15.
The Washington Legal Foundation (“WLF”) maintains that discrimination victims will not be left without remedies if the Court affirms the Fifth Circuit’s holding, because they can pursue emotional distress damages through multiple alternative avenues. Brief of Amici Curiae Washington Legal Foundation (“WLF”), in Support of Respondent at 7. WLF notes that the Supreme Court has historically declined to infer federal causes of action when state law remedies are available, and state law remedies are available for discrimination victims who suffer emotional distress. Id. at 13. WLF points out that all states recognize the tort of intentional infliction of emotional distress. Id. at 7. Furthermore, WLF argues, plaintiffs may recover emotional distress damages that stem from breach of contract. Id. at 8. As tort and contract remedies are available to sufferers of intentional infliction of emotional distress, WLF asserts that the Court need not infer a cause of action supporting emotional distress damages under federal law. Id. Thus, WLF contends that discrimination will not go unpunished. Id. at 11.
IMPACT ON FEDERAL FUNDING RECIPIENTS
Disability Organizations argue that allowing plaintiffs to pursue emotional distress damages will not “open the floodgates” to excessive claims that will debilitate funding recipients. Brief of Disability Organizations at 16. Disability Organizations point to measures that legislatures and courts already take to reduce the availability of emotional distress damages, like cabining excessive verdicts. Id. Further limiting recipients’ potential liability, Disability Organizations claims that punitive damages are not available under Title VI. Id. at 17. In practice, Disability Organizations assert, it is rare for courts to award large emotional distress damage awards under Title VI, and courts will prevent unsupported damages awards. Id. at 20–21. Disability Organizations argue that outside of the Fifth Circuit, most circuits allow plaintiffs to recover emotional distress damages under the RA and related statutes. Id. at 16. Disability Organizations contend that emotional distress damages are difficult to prove because courts may not award speculative damages, and courts generally require that plaintiffs present “direct and substantial evidence” of emotional harm. Id. at 18. Consequently, the Disability Organizations claim that a finding for Cummings will not greatly disrupt federal funding recipients. Id. at 16.
The National Conference of State Legislatures (“NCSL”) counters that holding for Cummings will adversely impact federal funding recipients. Brief of Amici Curiae National Conference of State Legislatures et al. (“NCSL”), in Support of Respondent at 20. NCSL contends that the unpredictability and subjective nature of emotional distress damages will complicate funding recipients’ calculations on whether to accept federal assistance. Id. at 32. NCSL cautions that state and local governments may choose to decline funds for local programs and services, if accepting the funds means that they may face uncapped potential liability for emotional distress damages connected to their use of the funds. Id. at 20. Making matters worse for recipients, NCSL claims, emotional distress damages are hard to predict as they are case-specific, difficult to quantify, and potentially sizeable. Id. at 20–23. NCSL also maintains that individuals may abuse their access to causes of action that cover emotional distress damages Id. at 23–24. NCSL argues that permitting liability for emotional distress damages may force state and local governments to reallocate local funds to the detriment of community services, decline federal assistance, and possibly raise local taxes to offset potential damage awards. Id. at 32.
- AARP Foundation, Civil Rights Abuses: Assessing the Cost of Emotional Distress, AARP (September 20, 2021).
- Lisa Soronen, SCOTUS to Rule on Emotional Distress Damages Case, NCSL (July 7, 2021).
- Mary Anne Pazanowski, Emotional Distress Damages for Disability Bias on Tap at SCOTUS, Bloomberg Law (July 8, 2021).